Countdown to the Firing of the SJC Judges

Opinion

Behind Every Civil Right is a Popular Vote

 By Daniel Avila

       Some oppose the effort to put an amendment on the 2008 ballot defining marriage in Massachusetts as the union of one man and one woman by claiming that “we shouldn’t put civil rights to a popular vote.”  The civil right of same-sex marriage, the argument goes, should be preserved against “the tyranny of the majority.” 

        On the contrary, behind every civil right is a vote of the people or their elected representatives, and neither group in Massachusetts has elevated same-sex marriage to the status of a civil right.

        The state started issuing marriage licenses to same-sex couples in 2004 only because four of the seven unelected justices of the Supreme Judicial Court commanded it in 2003.  That is not how a democracy creates civil rights.

        Those who designed our system of government envisioned that the people would make the rules, and that judges would apply the rules.  That is, the people legislate and the courts adjudicate.  The legalization of same-sex marriage by the SJC reversed the order.  Now we are being forced to follow a ruling that a court imposed without the people’s consent.

        We the people make the most fundamental rules, what we call civil rights, by amending our constitution or by getting our elected officials to enact civil rights legislation.  This form of lawmaking is hard to achieve because it requires tremendous buy-in from the public.  Civil rights do not flow from the pens of judges, but emerge after an intense period of open debate and public deliberation.  The rule of debate is—here comes everybody!

        A consensus is forged and eventually is memorialized in the form a new constitutional amendment or statute.  The people speak and do so democratically.  Civil rights are the rights that a majority of the people agrees to honor.

        Once adopted democratically, the new law directs the courts to enforce the people’s will.  If state agencies fail to honor the newly minted civil right, then that’s when the courts come into play.  The judiciary fills the role of enforcer, not the creator of civil rights.  The people’s voice is heard and applied, not usurped.

        None of that took place with same-sex marriage in Massachusetts.  A group of attorneys got together and decided to enter a lawsuit against the state.  They gathered some plaintiffs and filed some briefs.   Four judges in robes issued an order.

       That’s it.  There was no preceding public debate.  There was no grueling democratic process that put same-sex marriage into our constitution or statute books. 

        Thus, there was no constitutional provision or statute adopted by the people to direct the judges to rule for the plaintiffs.  No law informed the courts that the people deemed same-sex marriage to be a civil right.  Instead, the four justices wanted a civil right to be enforced so they invented one. 

        The people were never consulted.  Instead of here comes everybody, it was here comes the judge!

        Sometimes, after a civil right is created through the democratic process, public opinion shifts.  Government officials may be subjected to public pressure to take shortcuts to circumvent a constitutional amendment or statute.  Or maybe the full import of the new civil right is resisted.  The courts hem and the agencies haw. 

        That’s what happened with racial discrimination.  Slaves were not considered citizens under our original constitution.  They had no civil rights.  The public debate over the question of their status and over the rightness or wrongness of racial discrimination was so intense it contributed to a civil war. 

        When the North won, Congress and the states debated and enacted two constitutional amendments to ban slavery and guarantee due process and equal protection within the states.  The people spoke and the right not to be discriminated against on the basis of race became a civil right.

        Yet racial prejudice persisted and the states asked the courts to cut corners.  Judges obliged and adopted the policy of “separate but equal” that allowed for racial segregation.  However, in 1954, the U.S. Supreme Court reversed itself and struck down segregation in its decision in Brown v. Board of Education, even though such a ruling was unpopular.

        Some wrongly equate what the SJC did with same-sex marriage to what the U.S. Supreme Court did with desegregation.  The Brown decision was a legitimate exercise of judicial power because the people had already spoken through the 13th and 14th constitutional amendments.  The Brown ruling implemented a vote of the people; the SJC ruling did not.

        When others tell you that we shouldn’t allow the people to vote to take away the civil right of same-sex marriage, tell them that behind every civil right is a popular vote and that the people never voted for same-sex marriage.  If the amendment to define marriage as the union between one man and one woman gets to the ballot in 2008, then the people will have their say about marriage.  That’s what democracy is all about.

Daniel Avila is the Associate Director for Policy & Research of the Massachusetts Catholic Conference.